Family Court of Australia - Full Court

FAMILY LAW – APPEAL – EVIDENCE – Privilege – Where the wife sought a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) ("the Evidence Act") in relation to the wife's proposed evidence in chief – Where the primary judge dismissed the application on the basis that there was insufficient evidence to determine whether the wife had reasonable grounds for objecting to giving the evidence.

FAMILY LAW – APPEAL – EVIDENCE – Compellability – Where a witness must be "required" or compelled to give the evidence to which the objection is made – No distinction between oral and affidavit evidence – Whether the duty to give full and frank disclosure under the Family Law Rules 2004 (Cth) ("the Rules") compels a party to give evidence which may abrogate from the privilege against self-incrimination – The Rules as per the "principle of legality" evince no intention to impinge on a party's privilege against self-incrimination – Preliminary view that if a party is directed to file an affidavit on a specific subject matter, such circumstances may contain the requisite degree of compulsion to permit the issuing of a certificate – Where there is no basis on which the certificate could have been granted to the wife in this case as the element of compulsion was lacking.

FAMILY LAW – APPEAL – EVIDENCE – Reasonable grounds for making an objection – Where the "objection" under s 128(2) of the Evidence Act refers to giving evidence that "may tend" to prove that the witness has committed an offence or is liable to a civil penalty – Where the primary judge took the view that in order for a s 128 certificate to be granted the wife had to provide to the court the evidence that was objected to – Where the primary judge erred by focussing on identifying the evidence as opposed to considering whether there were reasonable grounds for the wife's objection – Where the primary judge was nevertheless correct in refusing to grant a s 128 certificate as it was not available for the wife's proposed evidence in chief – Appeal dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the order dismissing the wife's application did not finally determine her rights in relation to a s 128 certificate – Where leave to appeal is therefore necessary.

CRIMINAL PROCEDURE – where accused in criminal trial sought disclosure of identities of persons who made risk of significant harm reports – whether District Court in criminal trial has power to order disclosure of identities – Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 24, 29(1)(f)(ii) – Court cannot order Secretary to disclose the identity of a person who made who made a risk of harm report.

NSW Court of Criminal Appeal

CRIMINAL LAW – conviction appeal – sexual intercourse without consent – homosexual intercourse with male under 10 years – admissibility of tendency evidence – tendency incidents the subject of acquittals – acquittals based upon failure of Crown to rebut common law presumption of doli incapax – whether tendency evidence left to jury on a basis that controverted acquittals.

EVIDENCE – tendency evidence – probative value –prior conduct the subject of acquittals – acquittals based on failure to prove offender capable of criminal intent – whether tendency evidence relevant only to actus reus of further offending – basis on which tendency evidence could be left to jury – tendency to "sexually assault" children – admissibility of recorded admissions to tendency incidents – appeal against conviction upheld – conviction and sentence quashed – matter remitted to the District Court.

STATUTORY INTERPRETATION – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(d)(iii) – whether reports made to Department of Family and Community Services admissible in criminal proceedings in Supreme Court – principle of legality – accused's right to a fair trial – whether Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(d) was intended to abrogate the accused's right to a fair trial.

APPEALS – precedent – circumstances in which Court of Criminal Appeal will depart from previous decisions – whether The Application of the Attorney-General dated 4 April 2014 [2014] NSWCCA 251 ought to be followed – applicant granted leave to appeal – appeal dismissed.

CRIME – suppression and non-publication orders – respondent pleaded guilty to historical sex offences – some of the offences were committed during a period when the respondent was a child - Children (Criminal Proceedings) Act 1987 (NSW) s 15A prohibits identification of respondent in connection with criminal proceedings involving certain offences – complainants' consented to the publication of their names for the purposes of that Act – whether order under Court Suppression and Non-publication Orders Act 2010 (NSW) s 8 necessary because s 15A prohibition apparently not complied with – whether order necessary to protect the safety of respondent or his family – order not necessary.

NSW Supreme Court

CHILDREN – parens patriae jurisdiction – application to prevent implementation of orders made by the Children's Court – Children's Court ordered that children the subject of the application be returned to their carers – the Department contends that this would pose an unacceptable risk of harm – whether there is an unacceptable risk of harm – necessary to balance possibility of harm if children are returned with probability of harm if they are not – application dismissed.

District Court

CHILD CARE APPEAL – due to exceptional circumstances the appellant's costs of the appeal assessed pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 are to be paid by the Department of Family and Community Services.

Children's Court

COSTS – finding that there was a realistic possibility of restoration to the father of the children – father seeking a costs order – exceptional circumstances – Secretary relied on allegations as an integral part of risk assessment without making reasonable enquiries in determining the truth – whether costs should be apportioned between the Secretary and the children's mother - Secretary ordered to pay the costs of the children's father as agreed or assessed.

NSW Court of Appeal

APPEAL - appeal from Local Court – where magistrate dismissed charges pursuant to s 32(3)(b) Mental Health (Forensic Provisions) Act – where order in terms that the person attend a psychiatrist/psychologist – "specified" in s 32(3)(b) requires that a magistrate name a particular place or a particular person – consideration of giving effect to the enforcement provisions and the object and purpose of Part 3 of the Act – appeal allowed

FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – where child under the parental responsibility of the Minister – child placed in foster care – application for leave to appeal against refusal to grant permanent injunction restraining disclosure that child was in care – where applicant conceded at trial that the court was engaged in a "balancing exercise" between the child's interests and other competing interests – whether applicant can raise new arguments on appeal contrary to concession below –construction of strict liability offence for publication of child's name contrary to Children and Young Persons (Care and Protection) Act 1998, s 105 – whether primary judge's construction was arguably wrong – whether judge's exercise of discretion in refusing to grant injunction arguably miscarried.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) – where allegation that father had sexually abused daughter – appropriate test to be applied in cases involving custody or access to a child – whether inability of court to make positive finding of abuse determinative of the ultimate question of whether unacceptable risk of harm to child – M v M (1988) 166 CLR 69; [1988] HCA 68

EVIDENCE – standard of proof – proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) – where allegation that father had sexually abused daughter – application of Evidence Act 1995 (NSW), s 140 – application of Briginshaw standard

SUPERVISORY JURISDICTION – review sought of judgment of District Court on appeal from Children's Court – application for leave to apply to vary care orders – whether District Court erred in law in failing to apply provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90 – whether relief futile or unnecessary CHILD WELFARE – care and protection of children –application for leave to vary care orders – whether "significant change in any relevant circumstances" – whether applicants had arguable case

NSW Court of Criminal Appeal

Evidence Act 1995, ss 13, 61, 165(2) — child witness — competency — no error in judge's conclusion that 6-year-old witness competent to give sworn evidence — judge applied correct test under s 13 — even if complainant not competent to give sworn evidence, trial judge not obliged to direct jury that there is distinction between sworn and unsworn evidence — no requirement under s 165(2) of Evidence Act 1995 or common law to warn jury that evidence may be unreliable because it is unsworn — Criminal Procedure Act 1986, s 306V — admissibility of recorded interview as evidence of vulnerable person determined by s 306V not Evidence Act 1995, s 61 — judge did not err by admitting complainant's pre-recorded interview — question of competence at time of interview not part of defence case at trial

NSW Supreme Court

APPEAL – "question of law above" – magistrate's decision not to disclose reasoning adequately nor conclusions of facts – magistrate failed to conduct balancing exercise under s 138 of Evidence Act – decision quashed. ARREST – arrest for breach of bail without consideration of alternatives is not necessarily improper and the evidence obtained not necessarily in consequence of impropriety.

STATUTORY INTERPRETATION – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(d)(iii) – whether reports made to Department of Family and Community Services admissible in criminal proceedings in Supreme Court – principle of legality – whether clear and unmistakable language used to abrogate right to a fair trial – clear language in earlier form of s 29(1)(d) – right to a fair trial according to law – reference had to Second Reading Speech – proceedings in s 29(1)(d) are "child welfare proceedings" – s 29(1)(d)(iii) not a reference to all proceedings in this Court involving children – reports inadmissible in criminal proceedings in this Court